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DIVORCE: How do you divide up Superannuation?
For many Australians, Superannuation is one of the most valuable assets they own. Consequently, the right to seek a division of Superannuation and the process by which it is done often becomes a critical part of the asset division following any relationship breakdown. Here are some of the important points to note:
Under Family Law, Superannuation is as fully divisible as any other asset and those rights are available equally to both married and defacto couples alike*. The actual division of Superannuation is commonly referred to as “Superannuation Splitting” and importantly, any money split from the Super Fund of one spouse, must be paid into a fully compliant Super Fund in the name of the other spouse. The money can’t ever be paid out directly to the other spouse as cash.
Each spouse must make full disclosure as to the current balance of their Super Funds and, if a spouse fails to do this, the other spouse has the right to go directly to the Super Fund and get the information from source.
As for working out the actual value of the Superannuation, a good staring place is the 30 June Member Benefit Statements all Super Funds send out each year. There is however no obligation to fix the value as at 30 June and the Super Fund can give an updated value at any time. Backdating the value of the Superannuation to an earlier point in time like the date of separation is possible but actually splitting the Supers on these backdated values without agreement from the other spouse is not. Also, the value which the Super Fund gives on its standard Member Benefit Statements is not always the correct value to be used for Family Law purposes. In some cases, the Family Law Rules require a different calculation to be used. This should always be checked with the Super Fund before a Superannuation Split is finalised.
Splitting the Superannuation is not always mandatory. In appropriate cases each spouse can leave their own Superannuation account intact and instead trade-off the Superannuation Split amount against other assets in the overall property division exercise.
If a Superannuation Split is to occur, it must be contained in documentation that is fully compliant with both the Family Law Act, the rules of the particular Super Fund and the overall governing legislation that regulates the Super Industry. If a mistake is made with any of this paperwork the Superannuation Split will be completely ineffective.
* Although, for defactos the relationship generally must have lasted for at least two years.
Michael Zande is a Queensland Law Society Accredited Family Law Specialist with over 30 years’ experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice, phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
For many persons facing a relationship breakdown, there is often great worry that the other (now ex) spouse will give in to all of the negativity of the separation and unleash a tirade of abuse and untruths.
Although abuse can be very confronting, it is generally easy enough to spot and it can be fairly effectively stopped with our strong anti-domestic violence laws. In reality, it is often the untruths that become the real menace because lies are fairly easy to manufacture, and liars are generally very good at convincing others that they are speaking the truth. The lies could take the form of false allegations about domestic violence or other false assertions about important historical events that will fundamentally change how parenting arrangements for the children and/or property might be divided. For anyone facing these sorts of lies, the thought of having to expend considerable amounts of time, energy and money to prove the truth, coupled with the possibility that the liar may still be believed would, understandably fill the strongest of us with dread. But take heart, the worst day of your life may yet turn out to be the best thing that ever happened to you.
Under the formal family law system, there are plenty of reasons to take hope that all will be all right in the end.
The first is that once the lie is spoken or published, it will usually be impossible for the liar to further embellish it without exposing the first statement to be false. For the victim of the lie therefore, there is comfort in knowing that matters probably cannot get any worse because the upper limit of the potential damage of the lie is now known and capped.
Second, once the lie is out in the public space, the lie is exposed, isolated and vulnerable to attack and defeat because usually, the liar will not be able to create new lies to conceal the fallacy of the first one.
Third, it is the liar who still bares all of the responsibility of actually proving it and within that exercise, it is the victim that now gains considerable rights and powers which are all there to defend the truth.
Defeating a lie of course will rarely ever turn out to be the best thing that might ever happen to you, but at least in the family law space, a lie does not usually cause the worst day of your life.
Michael Zande is a Queensland Law Society Accredited Family Law Specialist with over 30 years’ experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice, phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
IS IT NECESSARY TO DOCUMENT THE PROPERTY DIVISION DEAL?
When a couple decides to separate, decisions of course must be made about the division or disposal of assets and liabilities. For some, the stakes and/or the emotions run so hot and high that nothing can be resolved without the assistance of Lawyers and Courts. For others, the mutual desire to keep things dignified and amicable can mean that they are able to work out how the division should be done without the need to consult a Lawyer at all. For the couples who are able to separate cooperatively therefore, the question begs, do we need to have anything documented at all and if so what are the options?
Generally, there are at least four reasons why formal Family Law documentation should be prepared and as for the documentation options, there are three choices to consider:
Reason #1 – No come back – Once proper Family Law documents are prepared and executed, each spouse is free to go off and live their life (make or break their fortune etc) without the need to be constantly looking over their shoulder in fear that their former partner might change their mind and start the legal processes for a re-division of the assets on more advantageous terms.
Reason #2 – Enforceability – With proper documentation, both spouses are locked into the deal meaning neither can subsequently refuse to carry through with the required transactions (sale of the home, payment of money etc) nor suddenly introduce additional demands (more money etc) in return for their continued cooperation to carry out the terms of the deal.
Reason #3 – Stamp Duty Exemptions and Capital Gains Tax (CGT) Rollover – If the family home or an investment property is to be transferred into one spouse’s name alone, that transfer is stamp duty free (saving $000’s) if it is done pursuant to a recognised Family Law Agreement. CGT is not charged on the transfer/sale of personal residences but for investment properties, even a transfer between the spouses will trigger an immediate obligation for payment of CGT (which can run to $000’s) if there is no recognised Family Law Agreement in place*.
Reason #4 – Superannuation Splits – If the deal involves one spouse transferring part of their personal accumulated superannuation account to the other spouse, that transfer can only happen if authorised by proper Family Law documentation.
*Importantly though, the tax liability carries forward with the property (it is not zeroed out) and consequently will still be payable if/when that property is subsequently sold at any time in the future.
When it comes to documenting a Family Law property settlement deal, there are three choices:
Choice #1 – Family Court Consent Order – Using a specialised application form, the two parties can write down the terms of their deal into a document expressed to be a “Consent Order” and then place it before the Court for approval. The Court will not automatically approve the deal unless convinced that the settlement is roughly in line with what the Court would have ordered anyway. A “Solicitor sign off” on the documents is not mandatory, but without it, the Court itself will take a much closer look at the matter and is more prone to reject or requisition the Orders if it finds irregularities or cause for concern. The time frame of obtaining the Court’s approval does vary, but generally the Orders are returned with Court approval within 2 – 4 weeks.
Choice #2 – Binding Financial Agreement (BFA) – Unlike Consent Orders, BFA’s are not filed in or approved by the Courts and therefore they do allow scope for the parties to be more flexible with the deal they wish to strike and how it is to be carried out. In a default scenario, the BFA can be registered in the Court which upgrades the terms to the equivalent of Court Orders, but the Courts cannot be forced to enforce the Orders if the Court doesn’t like the BFA’s terms. When the BFA has been properly thought out and drafted, the risk of non-enforcement is slight to non-existent, but nonetheless for this reason some Lawyers do refuse to use them. Two big advantages with BFA’s are cost and speed. Generally, BFA’s are around 30%- 50% cheaper to prepare than Consent Orders and are binding/active as soon as they are signed compared to the 2 – 4 week waiting time required for Consent Orders. With BFA’s however, a Solicitor’s sign off (that is an independent Solicitor for each of the parties) is mandatory, such that the Agreement is completely unenforceable and invalid if this is not done.
Choice #3 – Divorce and wait – Under Section 44 of the Family Law Act, upon the expiration of one (1) year from the date of a divorce (for married couples) or the expiration of two (2) years from date of separation (for de facto couples) the power given to Family Court Judges to deal with a Family Law dispute is extinguished. Accordingly, if the assets are already divided or the parties are very confident they can do so voluntarily without having to rely on an Order/BFA for enforcement, the parties can simply leave the assets where they stand, or carry out the transactions and then apply for the divorce/wait out the 2 years after which time ownership of the assets will effectively stand where they fall. This option however will not carry the CGT rollover relief which is available under a BFA or a Consent Order. Stamp duty exemptions can still be claimed for married couples if the property transfer is delayed until a Divorce Order is obtained or at least applied for, but this is not available for defacto couples. A further risk/problem with this strategy is that the extinguishment of the Family Court’s power mentioned above is not absolute. Even after the 1-2 year period has expired, either party can apply to the Family Court for permission to commence proceedings out of time and, in appropriate cases that permission will be given.
Michael Zande is a Queensland Law Society Accredited Family Law Specialist with over 25 years’ experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice, phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
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When parents separate, the overall message from all of the literature and good counsel is that each should do everything in their power to keep their children out of the fight. In many cases however, low levels of trust driven by high levels of perceived parental incompetence can provoke a parent into the belief that it would be better for the children to be shielded away from spending any time or even communicating with the other parent.
In what circumstances then is it OK for a parent to act in this way?
The full answer to this question could quite easily fill an encyclopaedia or even provide the script for an entire television drama series, but there are some “short speak” answers that act as a good guide.
First, both of the biological parents to a child(ren) are considered, at law, to have a joint right/responsibility to retain the child(ren) in their care and make decisions for their welfare. Although this right is “joint”, a parent who acts solely and seeks to exclude the child(ren) from the other parent, does not (at least in the first instance) commit a crime under any law. Juxtaposed to this however are positive obligations imposed by the Family Law Act by which each parent is required to do all things reasonably necessary to ensure that the child(ren) continue to have a meaningful relationship with both parents. A parent therefore who blocks the other from seeing the child(ren) in defiance of this general obligation will usually see their dispute escalated to the Family Court where a judge will decide (and order) what time a suspect parent spends with the children and on what conditions.
When can a parent block the children from time or communication with the other parent in defiance of a Court Order?
Whilst a parent who breaks a court order won’t instantaneously burst into flames, contravening an order does carry the risk of serious sanctions and these can only be escaped if the parent can give a “reasonable excuse”. From case law, a reasonable excuse historically has been accepted where:
The order was breached because the parent did not at the time understand the obligations it imposed…. AKA the “ignorance excuse”; or
Where the parent believed on reasonable grounds that the contravention was necessary to protect the health or safety of the child or another person (including themselves); and
The contravention was not longer than was necessary to protect the health or safety of the person referred to…. AKA the “protection excuse”.
These days, “ignorance” excuses rarely work because modern court orders are accompanied by an explanatory memorandum that clearly sets out the obligations under the orders and the consequences for breaking them. The “protection” excuse remains solid but it is always a question of fact and degree.
What happens to a parent that is found to have inappropriately blocked time with the other parent?
The Court these days has a number of powers open to it which include:
Order an attendance to a post-separation parenting program;
Compensate for time lost with the child as a result of contravention;
Require the respondent to enter into a bond;
Impose a community service penalty or a fine;
Order the Respondent to spend a stint in jail; or
Varying the primary Order – this could include an Order that says that the child is now to start living with the other parent.
Are there any overriding policy considerations that a Court is generally required to apply?
Whilst the short answer here is no – each case must turn on its own facts, a helpful statement made in a previous case was that when deciding these matters, it is not for the Court to try to make an example out of a parent who has breached the Orders as a means of trying to deter other parents from doing likewise, but instead, the Court’s focus must be to make Orders which will better ensure future compliance as opposed to a “general deterrence or policy”. In practical terms what this means is that if a parent has repeatedly and defiantly failed to comply with an Order, but on analysis it is discovered that the Order is just not practicable or even doable, then the Court instead will change the Order rather than punish a party.
What happens when the child refuses to go?
This is a very common and highly problematical area, but again from case law, some general principles have been laid down. These principles say:
The resident parent must actively encourage the child to attend contact;
It is not open to that parent to simply bring the child to the front entrance/gate and then invite the child to walk of its own accord off to the other parent – merely standing by with “folded arms” doing nothing more to either encourage the child to walk to the other parent or discourage the child from remaining still is not enough;
Merely requesting that the child make a telephone call, or to come to the phone is insufficient;
It is not open to a parent to say to the child, “you go if you want to”, or “you make up your own mind”;
Instead it should be the resident parent who tells the child that it is that parent’s wish that they go on contact with the other parent – this is an important point, it is not sufficient for the parent to say it is the other parent’s wish that they go;
It is expected that the resident parent bring to bear the authority that they have over the child just as they would ensure that the child attends school;
The resident parent is not entitled to treat the other party as an enemy who is to be thwarted wherever possible by either active steps or passive resistance;
Even where a parent is in disagreement with the Order, the parent cannot carry on a campaign of non-compliance or defiance against it, the parent must change their attitude and conduct themselves as if it was a decision reached by them of their own free will. If a parent persists in the belief that the Order is wrong, then it is for that parent to convince a Court to change the Order. Short of that action, compliance is required.
Does the situation change at all where the arrangement is recorded in a parenting plan?
A “Parenting Plan” is a document recognised under the Family Law Act as a simple agreement entered into between the parents to record care arrangements for their children. Because these Agreements are not submitted for prior Court sanction, any parent who breaches its terms is not, initially, at risk of any punishment for doing so. Instead in this scenario what typically happens is the innocent parent who seeks to enforce the Parenting Plan, makes special application to the Family Court asking for the Court to basically convert the Parenting Plan into formal Court Orders and usually Judges are happy to comply absent any compelling argument to say different. Once the Parenting Plan’s terms have been elevated up to become a formal Court Order, the arrangements then carry the full force of the Family Law Act and consequently any parent who subsequently reoffends and breaches the settled time and communication arrangements will face all of the usual court sanctions which were covered off in Part 2 of this series. A parent therefore who interferes with another parent’s rights to spend time or communicate with children under a Parenting Plan effectively faces a “strike 1/strike 2” situation.
What should be done when the child is expressing extreme resistance to spending time with the other parent?
We have previously covered off on this subject under another series of articles entitled “Does the child ever get a say”. The short answer for this paper however is that if the child is expressing extreme resistance to spending time with the other parent, then two initiatives should be activated immediately:
firstly, efforts should be made to get the child to counselling or some form of therapeutic treatment to either assist them in overcoming whatever anxiety or resistance they may have towards the other parent, or obtain independent verification of some serious threat of abuse from which mandatory reporting to police and child welfare authorities must follow; and/or
if there is time and money available a specially recognised Court expert known as a Family Report Writer should be appointed and the child(ren) should be allowed to be interviewed by that independent person so that the wishes can be adduced in a way that counters a suggestion that it was primed or scripted from one parent;
and in both cases, the other parent should be involved in the selection of the relevant service to which the child is to be taken.
Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
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DIVORCE – FAMILY LAW 101 THINGS YOU SHOULD KNOW
Every Real Estate Agent that has ever walked the earth will no doubt at one stage or another be approached by either an individual or a couple with a request to sell a property as a consequence of a break down in a marriage or a de facto relationship. Whilst in a macro sense, the sale exercise is really no different from what must occur for an intact couple, the overlaying fact that the parties are separated/separating can potentially throw up some curly situations that will potentially drag the Agent into conflict and controversy on many levels. Below is a dot point summary of things that any Agent being asked to sell a property on behalf of a separating couple should know:
• Is there any extra layer of documentation that should normally be prepared between the spouses beyond the normal Property Occupations Act 2014 Form 6 Listing Agreement? – Yes typically a Consent Order or a special Family Law Agreement (known as a BFA) is signed up between the parties which contain a series of clauses known as “machinery provisions”. As the name suggests, these clauses set up a series of default automatic consequences that will bind the parties if they cannot agree on issues such as:
– Which Agent should list the property;
– What list price should be on the property and/or periodic reductions in that price;
– The timing and arrangements for the property to go to auction;
– Who is to pay the Real Estate Agent’s costs and/or costs of an Auctioneer; and
– Who is responsible for meeting mortgage repayments, rates, insurances and general maintenance and upkeep for the property?
• Is the Agent entitled and/or obligated to view the Consent Order or BFA as part of receiving instructions for the sale? – These documents are not confidential between the parties (the separating couple) and so there is no issue with an Agent viewing them. As the Agent however is not personally bound to ensure that the parties continue to act in compliance with their Order/BFA, there is no obligation on an Agent to view the documents and it would not be common for the parties to share that information with the Agent.
• What happens if the property is registered in the name of only one of the spouses? Is there any obligation on the Agent to make sure the sale is happening with the other spouse’s full knowledge and consent? – An Agent does not have any direct obligations under the Family Law Act to protect the interests of the other spouse whose name is not on title. There are however, a great deal of responsibilities which sit on the shoulders of the single title holding (the selling) spouse as regards to the other spouse and these include:
– Disclosure – the spouse must keep the other spouse informed about the intention to sell the property and offers which are coming in; and
– Ensuring that the property is sold at market value.
AND it is very important to note that under Section 112AB of the Family Law Act, a third party (like a Real Estate Agent) can actually be fined or even imprisoned if that third party “aided or abetted” a contravention of a Court Order by a person who is bound to it. Consequently, if an Agent is aware that there is a Court Order that requires the selling spouse to undertake certain things, the Agent should not under any circumstances accept and/or follow instructions from the selling spouse to do anything which is in clear contravention of that spouse’s obligations under the Orders.
• If one spouse alone is the title holder and is selling the property, is the Agent entitled to voluntarily inform the other spouse about what is going on with the sale if they happen to enquire? – Strictly speaking, the Agent is duty bound to keep all information concerning the sale confidential between themselves and the client who has engaged them, being the single title holder spouse. The Agent therefore is not in any way automatically authorised at law to disclose information to the other spouse if enquiries are made and should therefore first seek authority/permission from the client spouse before any information is released. If the selling spouse withholds consent to share information with the non-selling/enquiring spouse, then the Agent would be well advised to respect the “gag” and direct the non-selling spouse to take the matter up with their Solicitor and/or the Family Court where arrangements can be made to either talk the selling spouse into compliance or otherwise obtain Court Orders forcing that compliance.
• Can the other spouse caveat or interrupt the sale? – A caveat is an express stop order which once registered against the property, has the effect of preventing any further documents being registered until the caveat is withdrawn, lapses or is removed by Court Order. Caveats are particularly menacing because they can be registered within a few hours at the cost of only a few hundred dollars however, if they have to be removed involuntarily, the process can take weeks or even months and can cost many thousands of dollars. They can be particularly problematical in situations where the caveat comes onto the property at a time after a binding contract for the sale of the property has been signed, but that contract has not yet been settled. As for whether a spouse actually has the right to lodge a caveat? The rule here is technical and often misunderstood. Put simply if the spouse cannot prove that they had personally invested substantial amounts of money into the property, they have no right to caveat it. But unfortunately that rule is bent/broken all the time.
• If the property is in joint names, what happens if one spouse is willing to accept an offer from an interested Buyer, but the other spouse is refusing to co-sign? – There are a number of options here which may be available:
– If the property is being sold under a fully regulated set of “machinery provisions”, depending on how those provisions were drafted, there may actually be a positive obligation on both spouses to accept an offer which comes in at or above what was already a pre-set list price. If one spouse therefore is breaching those machinery provisions, they are potentially liable to sanction, which is usually a fine that can be imposed by a Family Court to punish a person for breaching a Court Order. Reminding the reluctant spouse of those consequences, therefore sometimes will achieve compliance.
– There is an ability to rush an application back to the Family Court to seek Court sanction for the sale. Those applications however, usually take at least 2 – 5 weeks before they could be placed before a Judge, can cost several thousands of dollars to run and normally would require some fairly good evidence of the property having already been exhaustively marketed or that the intended contract price is well above the value of the property with good strong independent market valuation evidence to back that claim up.
– Under standard Family Law principles, if one spouse acts or fails to act in a way that results in assets being devalued or lost, then the innocent spouse can make claim (called Kowaliw arguments) for compensation for the other spouse to make good on the innocent spouse’s share of the loss. Depending upon the circumstances, these threats again can be quite effective in bringing the reluctant spouse back to sign the contract however, the point sometimes provokes the counter-argument – “so does this mean that if we say no to this deal and then we do achieve a higher price by putting the property back to the market, I get to keep the extra money?”
– In some circumstances, the inability to reach agreement on the sale may invoke pre-set default arrangements which enables one or either of the parties to put the property immediately to auction at a reserve price set to the same number as the rejected offer. By this arrangement the interested purchaser can then go to the auction with the ability to secure the property for the same price if no one else bids a higher price.
Ultimately, none of these solutions are an immediate “easy fix” and in many circumstances, the resolution of the issue eventually becomes a bit of a “staring competition” between the spouses to see who is prepared to capitulate first. Thankfully though, in most circumstances, a combination of common sense and/or nature finding its way, results in a sale eventually being concluded albeit perhaps not as clean and easy as it might have been had there been more co-operation and trust.
• Is there any circumstances in which the Real Estate Agent’s conduct in the sale of the property, file notes and financial transactions can be accessed? – Yes, if something went on in the sale that is relevant to the dispute between the spouses, the Real Estate Agent’s records and even the Real Estate personally can be subpoenaed and required to come before the Court to provide answers and information to anything that might be relevant to the particular issues/complaint. Importantly though, Family Court Judges have no power to regulate or punish an Agent who might be accused of having acted unprofessionally and therefore generally, the consequences of any particular problem/allegation of foul play do not stick with the Agent, but instead flow to the spouse who had instructed the Agent. As mentioned earlier in this series however, if in the sale of a property, a spouse deliberately breaches a Court Order that required certain things to be done or not done and an Agent knowingly assists the spouse in carrying out that breach, the Agent will themselves become liable to punishment from the Court pursuant to Section 112AB of the Family Law Act.
• What happens if one spouse is attempting to sign documents under a power of attorney they claim to hold on behalf of the other spouse? – The act of separation between spouses does not have the effect of automatically revoking a Power of Attorney that might have previously been given by one spouse to the other during happier times. If a formal Divorce Order has issued and/or one of the spouses has remarried, or if the relevant spouse prepares, signs and delivers a Notice of Revocation of the earlier Power of Attorney, or prepares a new Power of Attorney which is inconsistent with the old one, then any of these actions will have the effect of revoking the old Power of Attorney and consequently, any attempt to use a Power of Attorney after any of these events will be invalid. At the risk of stating the obvious however, any Agent should proceed with extreme caution in accepting any documentation signed on behalf of a Power of Attorney by one of the separating spouses purportedly on behalf of the other.
• What are Section 106A Orders and/or Orders for the appointment of trustees for sale? – Although it very rarely happens, there is actually a standard Order which is typically agreed to between spouses when they sign up for their final property settlement deals which gives to the Registrar of the Family Court the power to sign documents on behalf of one of the spouses if that spouse defaults in carrying out all of the tasks necessary to complete the sale of an asset. Under this Section therefore, one spouse could theoretically have the Registrar of the Family Court sign a Contract and the transfer of title documents which would be necessary to effect the sale of the property. In each case, there must be a fresh application made to the Court in which the Court must be satisfied that there was a clear obligation under the Order for the defaulting spouse to sign the document and there has been ample opportunity for that spouse to sign the document voluntarily. On a related topic, when one spouse has proven to be consistently delinquent in voluntarily co-operating in the process of a sale of an asset, there is also scope under the Family Law Act for a Judge to appoint the other spouse as “sole trustee for sale” of the assets. When an Order of this type is made, the one spouse is then given complete authority to choose the Agent, the method for listing, sign contracts and transfer documents and basically do every single one of the acts necessary to carry out the full sale of the asset and by virtue of this Order, that one spouse may sign all of the documents on behalf of each of them. Like Section 106A Orders however, the situations where this ever actually occurs are very extreme and therefore very rare. If however a sale as appointed trustee is to occur, it is imperative that the Court Order that authorises this be registered on the Title for the property, otherwise the Queensland Office of the Department of Natural Resources will not recognise the single spouse signature on the transfer documents.
Michael Zande is the Principal of Zande Law Solicitors, with 25 years experience in practice. Michael and his team have had extensive experience in conveyancing matters. Please feel free to review our firm and staff profiles at www.zandelaw.com.au
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
With the cost of housing and general living expenses these days sky rocketing, parents of adult children and even grandparents and extended family are understandably often motivated to provide some financial assistance to their children as they begin to take their first steps into the adult world. In the situations where the children themselves are single the decision usually descends into fairly easily resolved factors of capacity versus need. In the scenarios however where the child are themselves in a relationship (be it married or de facto) the dilemma for many parents is what would happen to the money should that relationship breakdown and the young couple decide to separate.
What is the situation if there is no agreement or documentation surrounding the original payment?
Under a special principle of law, any monies (or other assets) advanced by a parent to one of their children (be they an infant or an adult) is assumed to have been paid or passed over as a “gift” and therefore these monies (or other assets) are at least initially not treated as having any special character or protection and are simply treated as having been wholly intermingled with any other cash or assets that the now separating couple may have to divide between them. In the process of that division however, there are a number of practices that Family Court Judges could typically be expected to follow, being:
Where the relationship breaks down after a relatively short period following the time when the money was advanced (usually 5 years or less) most Family Court Judges respect the fact that the money advanced was not money to which the other spouse had really made any contribution and therefore the Court is usually inclined to quarantine that money out of the divisible asset pool and therefore effectively return it to the hands of the child of the parents who advanced the money.
In longer relationships (usually 10 – 15 years or more) Courts generally consider it irrelevant that money may have been advanced from one side of the family or not and instead (again at first instance) tend to treat each spouse as equally entitled to the money, as the other, regardless of the fact that it had originally been gifted from only one side of the family.
Regardless of the length of the relationship, be it short or long, the factors which might impact on one of the spouse’s present and future and financial needs (such as an obligation to care for infant child or some other impediment that stops that spouse from working to earn a living) tend to trump all other factors and can be used to take a claim on the monies previously advanced which might otherwise have sat at 0% all the way up to 100% in extreme circumstances.
In situations where a parent seeking to advance money is doing so on the, understandable, basis that they are happy to see the benefit shared equally between their own child and his or her spouse for so long as the relationship endures, but do not wish to see their generosity effectively high jacked and taken away from their own child by the other spouse in the event of a relationship breakdown, there are some ways in which these goals can be achieved. Each option however, does require some special arrangements and/or documentation to be put in place.
Option #1 – Record the advance as being a “loan”
If the arrangement can be accepted as a loan then, money that is repayable to the parents is deducted from those assets which would have been divisible between the now separating couple and paid off the top back to the parents. In this way, the parents are a creditor in the same way as a bank or a credit card company and are entitled to have their loan repaid before any of the net assets are divided between the separating second generation couple.
Once the monies are repaid, there is usually no impediment on the parents then turning around and readvancing the money to their own child once the full financial and physical separation between their child and there former partner/spouse has been effected and generally (save for extreme circumstances) no comeback or cause for complaint from the ex-partner/spouse although obviously discretion would be the recommendation.
When it comes to loans and specifically in the quest to have the separating spouse and/or a Family Court Judge accept that the arrangement was in truth a loan, there are however a number of important points to bear in mind:
First, the critical time for the agreement to be reached to say the arrangement is a “loan” is when the money is advanced. Except in very exceptional circumstances, it is not possible for the parents and the adult child to subsequently reach an agreement that alters the nature of what was previously a gift to change it into something else like a loan.
Second, although a Loan Agreement can be wholly verbal between the parties (that is nothing in writing), in the absence of any formal documentation, the arrangement is obviously open to suspicion/attack that the “loan” arrangement has been dreamt up as a strategy at some stage after separation on design to defeat a Family Law claim.
Third, where the arrangement has been documented, it is imperative that the documentation be clear to show that the arrangement truly is a loan and not ambiguous or otherwise open to interpretation to say something else.
Fourth, whilst it is possible for a loan to have no fixed date for repayment (commonly referred to as loans “payable on demand”) there is a principle of law that states that the loan will not be repayable if it has not been called up inside 6 years from when the loan was originally advanced. As an extension to this, where the loan has been left outstanding for many years, there comes with the increasing time, a growing argument to say the loan has long since been forgiven, or was a loan by name only and was never intended to be repaid in the first place.
Fifth, it is not necessary for the loan to be expressed as having been made out to both of the couple. The loan can be instead expressed to have been made solely to the advancing parents’ adult child, but in this scenario, there is always the enhanced risk that the other spouse might deny the loan ever existed.
To state the obvious, the best solution to many of the potential risks and issues identified above, would be to have the loan documentation drawn up formally (preferably by a Lawyer) and take steps to ensure that the other spouse either co-signs the loan or is at least clearly notified of its existence in a way that cannot be later denied. In regards to the issue of the Loan Agreement running stale after 6 years or beyond, the best answer would be to have a fresh Acknowledgement signed each cycle of 6 years to re-affirm that the loan is a valid loan and that the money is indeed intended to be repaid.
Option #2
Although a “loan” arrangement can be a simple and effective defence to protect monies intended to be advanced solely for the benefit of one child in a relationship, using the Family Law “Binding Financial Agreement” system is by far the best and most effective defence. Under this arrangement, an Agreement is actually signed up between the adult child of the parents who are advancing the money and his or her spouse, which Agreement is recognised under the provisions of the Australian Family Law Act. In this Agreement (commonly referred to by the Americans as “Pre-Nups”, the existence of the monies being advanced to the adult child (or the couple collectively) is acknowledged by each of them and it is further acknowledged that the monies are not in any circumstances divisible with the other spouse on marital breakdown. With such an Agreement in place, the parents then have the flexibility of either continuing to designate the arrangement formally as a “loan” or if they wish, to declare from the outset that the money was to be a gift, but in either situation, the money is protected and not open to claim from the other spouse. There are however, three conditions/issues or strings which are attached to achieving this protection:
Condition #1 – Whilst it is possible for the Agreement to relate only to the one advance being made by the parents, it is highly recommended that the Agreement extends to all of the assets which belong to the adult child and his or her spouse. This means the Agreement ideally should extend to cover how all of the assets and liabilities of the couple, including the monetary advance from the parents, should be divided.
Condition #2 – If the money advanced remains identifiably quarantined into a particular asset (for example paid as a deposit on a house which is being kept in hand or some other similar type of investment) then all good. However, if the money is being intermingled and/or transformed into other types of investments in which the other spouse might have made some contribution (be it in money or monies worth) then the terms of the Agreement that attempted to quarantine the initial gift might fail depending upon how the terms were originally drafted. Best solution here is for the Agreement to have regular updates (like a Doctor’s check-up) with a commitment to having the Agreement redrafted and resigned should there be a change in the asset configuration, or alternatively perhaps, drafting the Agreement to say that out of any division, a dollar amount equivalent to the amount of the original loan is deducted off the top and paid back to the parents.
Condition #3 – For these Agreements to be binding, they must follow very strict protocols which require the Agreements to be in writing, contain certain specific wording, signed by the parties with their signatures witnessed by a Justice of the Peace, Commissioner for Declarations or a Solicitor and for both parties to have received independent legal advice as to the effect of the Agreement and as to whether or not it is financially advantageous or disadvantageous for them to sign it at the time the Agreement is signed or beforehand.
As can be seen, the question of whether or not to advance money to assist an adult child who just happens to also be in a relationship, can be a thorny one however, the protections which are available by formal documentation of the arrangements as a loan and/or the use of Family Law recognised Binding Financial Agreements, are both very effective initiatives to minimise the risk of any parents’ hard earned money being lost to their child’s ex-partner should there be a relationship breakdown at some stage in the future.
Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
Comments Off on Divorce and Competing Religious Beliefs
According to some sources, there are presently as many as 4200 major separate religious affiliations to which members of the Australian population could potentially belong (4200 +1 if you count the religious order of Jedi knights as more than 70,000 Australians tried to do in the 2001 census). Given that there is now around 20% of the Australian population who identify as Being Buddhist, Islamic, Hindu or simply non-Christian and that given that within Christianity itself there is said to be around 41,000 separate denominations, it is little wonder that on the breakdown of any marriage or defacto relationship, differing religious beliefs might well be expected to have been a factor.
Where the separating couple also have children, what might otherwise have been unbridled freedom to pursue differing religious views can all of a sudden become very problematical and just as quickly plummet both parents headlong into very impassioned conflict as each tries to pull the children along their different religious persuasion.
When asked to adjudicate on disputes such as this, the Family Courts have over the years certainly struggled with the issues, but out of the cases, a number of principles can be taken:
Under the Australian Constitution, there is a cast-iron guarantee that no Government will ever make or administer a law so as to cause any form of interference with the freedom of all Australians to exercise whatever religious faith they may choose to pursue. As an extension of the Government, the Family Court is therefore similarly bound to not cause any bias or prejudice against differing religious beliefs when called upon to make a decision concerning parenting arrangements for children.
The Family Court however made it clear many years ago that whilst it accepts and must unquestionably follow the direction from the Australian Constitution, it would be patently absurd to adopt a “middle ground – neutral” approach which leaves each parent with free reign to indoctrinate the children into each of their respective different religions where the competing doctrines of the two faiths are so adverse that it would be contrary to the child’s welfare to continue to be exposed to both. In such cases therefore, the Court considers it is not only appropriate but necessary to weigh into the debate and decide which religion should prevail as the religion within which the children are to be educated and in doing so, the religion from which the children are to be barred.
In view of the Constitutional prohibitions, no court decision may interfere with each individual parent’s right to continue with their own religious practices and of course it follows that on attaining adulthood, any child is then free to choose any religious pursuit over another.
In choosing the relevant religion, the Courts have said that it is not their role to assess the competing religions in terms of value or virtue, but instead it should look at the relevant beliefs and practices of each faith as if they were a “life style” choice and as a “life style” choice, the Court must then assess which of the two different religious beliefs represents a better fit for the child’s best interests having regard to the ordinary check list with which a Family Court Judge decides any dispute between parents. The religious practices which represent the best fit with that checklist therefore usually prevails and so in a roundabout way the family law checklist effectively becomes the new Bible so to speak.
The Family Court therefore is basically assessing each parent as a “package” with part of that package being each parent’s relevant religious beliefs and in that respect, the Court is also assessing the extent to which either parent might (if necessary) be able to restrain their natural and understandable inclination towards teaching and indoctrinating the child into their own religious beliefs either by direct action or passively by example.
One of the check list factors which has in the past proved critical to the Court’s decision is the right of the child to spend time and enjoy a relationship with their other siblings and parents and also a broader social interaction with the general community. In circumstances therefore where the relevant religion may promote practices of exclusivity and prohibition for its members to interact with the broader “non-believer” community (for example The Exclusive Brethren), and the practicing parent is applying such doctrines to justify alienation of the child from the other parent or siblings who may have “withdrawn” from the church, the Family Court has been known to order the removal of the child into the care of the other parent and in doing so effectively remove the child from the influence of the relevant church.
In the inverse situation, maintaining a status quo of the life and belief systems that a child has come to know is also considered very important and therefore in circumstances where it is clear that a child has already become fully infused with one particular religious faith, a Court will be very unlikely to change it and in such circumstances is likely to direct the non-believing parent to exercise full restraint in any attempt to withdraw the child away from such religious belief.
In cases where the Court is forced to choose for the reasons set out above, the Courts have been known to go to the extremes of actually directing a parent to refrain from any attempt at further indoctrination of the child either into or (as the case may be) away from a particular religious faith, and in those circumstances will also commonly extend those prohibitions so as to bar the relevant parent from allowing any other person to act in such ways.
We would like to acknowledge the assistance of Rachel McCleary, Student of Mueller College, for the research for this article.
Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice phone 3385 0999.
The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.
